Jennifer Simpson (as Assignee of Alan Catchpole) v Norfolk & Norwich University Hospitals NHS Trust 23.03.11
The Court of Appeal judgment has been handed down in a unique test case being managed by Kennedys, confirming that an assignment of a bare cause of action in tort for personal injury was unlawful and void for reasons of public policy.
The Court of Appeal concluded that the starting point was to identify whether the claim against the hospital was capable of assignment at all. It held that there was no reason in principle why a claim for damages for personal injury would not be capable of assignment. However, it confirmed that the crucial question was whether an assignee could point to the existence of someone with a legitimate interest in the litigation.
The lead judgment, given by Lord Justice Moore-Bick, confirmed that in this case, “Mrs Simpson did not have an interest in Mr Catchpole's claim of a kind that the law should or does recognise is sufficient to support an assignment of what would otherwise be a bare right of action and is therefore guilty of wanton and officious intermeddling with the disputes of others”.
Without providing guidance on the type of cases that could be suitable for assignment, the Court of Appeal acknowledged that change in perceptions of public interest could, in time, support the assignment of a cause of action in a personal injury claim. However, Moore-Bick LJ made it clear that to encourage litigation whose principle object is not to obtain a remedy for a legal wrong, but to pursue an objection of a different kind altogether, was not in the public interest, and would be damaging to the administration of justice and unfair to defendants. The conduct of the proceedings, including a readiness to compromise, is likely to be compromised by moving the responsibility for such conduct to the assignee, whose considerations are unlikely to concern the merits of the claim itself.
The Claimant failed on the argument that there was a breach of her property contrary to Article 1 of the European Convention on Human Rights. The Court confirmed that there was no question of Mr Catchpole being deprived of his property and that all the law seeks to do is to restrict his ability to dispose of it. Again citing reasons of public interest, the Court held that “the restriction that prevents him from disposing of [his property] to a person who has no legitimate interest is proportionate to the objective of preventing trafficking in litigation of a kind that would undermine the administration of justice”. Since Mr Catchpole was free to pursue his claim on his own behalf, this represented a fair balance between the use of his property and the interest of the community at large. It also negated the Claimant’s argument for access to justice considerations.
Dismissing the appeal, the judgment was agreed with by Dame Janet Smith D.B.E and Lord Justice Maurice Kay.
We take comfort from the decision in this case which supports the view that there cannot be any benefit in entertaining the development of allowing an assignment of a cause of action in a personal injury claim. As well as public policy arguments, the practical implications of allowing such a process in a current system which is not equipped for it are untenable. Delay, frustration and unnecessary cost would ensue.
Although the Court of Appeal acknowledged the possibility of assignment of a cause of action for a personal injury claim, in principle, the judgment is helpful in clarifying that in practice, an assignment of such is unlikely to be entertained by the courts.
Please see our previously reported case review for the background to this case.